Gammon v. Bunnell

After stating the facts, Miner, J., delivered the opinion - of the court. The only question for determination in this case is whether the complaint states a cause of action. Sec. 3935 R. S. 1898, provides that: “When a person who is bound by contract in writing to convey any real estate, dies before making the conveyance, and in all cases when such decedent, if living, might be compelled to make such conveyance, the court may make a decree authorizing and directing his executor or administrator to convey such real estate to the person entitled thereto.” It appears that a legal contract was made to convey the land in question to the plaintiff, and that a part of the consideration was paid, and that the balance thereof was to be paid, after the death of the grantors, to Martha Ann Gammon Roberts, when she should acknowledge the receipt in full of the $300. When this was done the deed was to be delivered to the plaintiff. Plaintiff at the time entered into possession of the land, and has ever since remained in such possession. After the death of the grantors the money was offered to Martha Ann Gammon Roberts, and by letter she refused to receive the $300, or to sign or deliver a receipt therefor, and demanded in lieu thereof 7 acres of land covered by the deed. This offer to pay the amount due, and a refusal to accept the same or receipt therefor, coupled with her alleged hos [427] tile acts in seeking to take possession of the property covered by the deed, and her refusal to accept the tender of $301 paid into court, must be treated as a refusal on her .part to acknowledge any right in the plaintiff under or by virtue of said deed, and a refusal to accept the offer made. The depositary of an escrow is the agent of both parties, . and a contract so made and deposited is not revocable at the will of either party or their representatives, but may be enforced under the provisions of Sec. 3935 R. S. If no date is fixed for the delivery or performance of the contract a reasonable time is intended and'ho default can attach until after a demand and failure or refusal to perform. 2 Warvelle on Vendors, p. 774. The delivery of this deed in escrow rendered it absolute when the condition upon which it was made was fulfilled. The evident intention of the parties was that if within a reasonable time after the death of the grantors the plaintiff should pay to Martha Ann, Gammon Roberts $300, evidenced by her receipt, then the deed was to be delivered' to the plaintiff. One dollar of this contideration was acknowledged paid, and the plaintiff went into immediate possession of the premises. The object of the delivery in escrow was to secure the payment of the price to Mrs. Roberts. When that was paid, or offered to be paid, and refused, the plaintiff had a right to the deed. The purpose of the escrow having been accomplished the plaintiff held the deed in the same manner he would have held it if it had been delivered to him in the first instance. The intention was that it should be the deed of the grantee when the condition was complied with, and when complied with it would take effect from its first delivery. 1 Devlin on Deeds, Secs. 328, 329; Price v. Pittsburgh R. R., 34 Ill. 33; Bostwick v. McEvoy, 62 Cal. 496; Rug-' [428] gles v. Lawson, 13 John 285; Davis v. Clark, 48 Pac. 563; Wheelwright v. Wheehwright, 3 Am. Dec. 66. In onr judgment the complaint states a cause of action, that would entitle the plaintiff to recover. In the court below the plaintiff elected to stand upon his complaint and refused'to plead further, and the defendants elected to stand upon their demurrer. As the facts are not in dispute it would seem unnecessary to send the case back for a new trial. The judgment of the district court is reversed, with costs, and the. case is remanded with directions to said court to enter judgment in favor of plaintiff ás prayed for in the complaint. Bartch, C. J. and BaskiN, J. concur.